The Supreme Court confronted a U.S. citizenship law with evident distaste Wednesday because it treats fathers and mothers differently, even as justices offered little hope to a Mexican-born man who says he should be declared an American.

If Ruben Flores-Villar’s mother had grown up in the U.S. instead of his father, he’d almost certainly be a U.S. citizen under a 70-year-old law for children born abroad to one American parent and one non-American. Flores-Villar’s problem is that his father, not his mother, is a U.S. citizen. The law makes it harder for children of unwed American fathers to claim citizenship.

The law is based on the old (and transcultural) tradition of matrilineal descent: it’s the womb that counts, because you always know whose you came from. But the days of “mama’s baby, daddy’s maybe” are over. Now that paternity can be proven to an absolute scientific certainty, there’s no reason for matrilineal descent. Setting one standard for mothers and another for fathers is inherently unfair.

I have a personal bone to pick with matrilineal descent because it’s been used against me my entire life. Despite being Jewish by both bloodline and religious practice, the fact that my one Jewish parent is my father means many in the Jewish community—and the entire state of Israel—tell me that I’m not Jewish. Unfortunately, Jewish law was codified thousands of years ago and hard-liners will not depart from it. Fortunately, US civil law is progressive in a way Jewish religious law is not.

I have heard claims—some from feminists—that that matrilinealism favors or empowers women by making them the bestower of ethnic identity, or in this case, citizenship. They are wrong. Matrilineal descent should never be confused with Matriarchy. Matrilineal descent is rooted in a fundamentally patriarchial view of womanhood: our primary role is to bear and raise children. It also gives the Patriarchy every reason to continue subjugating women by ensuring that they have no legal rights and are entirely dependent—the better for their husbands to control their wombs. This was the case in Western society for millenia and is still true in many parts of the world. And for millenia, ethnic groups had a vested interest in preventing their men’s out-of-wedlock children with women of another group from claiming membership. Acknowledging only children born with the “right” women helped preserve a people’s resources and ethnic purity.

In more progressive societies, applying matrilineal descent—as in this case—simply reinforces the idea that women, not men, should be primarily responsible for their children, which deprives men of equal rights as parents, and implies that they are inadequate to the task of raising their own children.

The federal public defender representing Flores-Villar, Steven Hubacheck, said the law perpetuates outdated “gender stereotypes” about caring for children in a time when many more single fathers raise children.

Scalia questioned whether these notions were outdated. He asked if it wasn’t generally true that with “an illegitimate child, it is much more likely that the woman will end up caring for it than that the father would?”

Justice Ruth Bader Ginsburg interjected that the court should be considering parents like Flores-Villar’s father “who don’t fit this mold.”

Yes, they should. Those fathers are entitled to the same rights as mothers in this regard. The gender discrimination becomes especially glaring if you consider that even if an unwed American mother deserted her child, the abandonment would not affect the child’s right to citizenship. The issue here isn’t who raised the kid, it’s who the kid’s biological parents are—a fact that does not change according to circumstance.

The law discriminates against men, pure and simple. Ruben Flores-Villar should have US citizenship, as he would have if his mother had been American. He does not because his father—and by extension, he—was the victim of gender discrimination. The end.

13 Responses to “Who’s Your Mommy?”

Not all countries differentiate between mothers and fathers when deciding who inherits citizenship. I was born in the US, but my dad was born in the UK and I’m a citizen by decent. It didn’t matter whether my UK-born parent was my mom or dad. However, since I wasn’t born in the UK, I can’t pass my citizenship on to my children – seems reasonable.

I used to work with a man whose father is a US citizen, while his mother is Mexican. He was born in Mexico, but his parents went to the US embassy for his mom to give birth so that he could be born “on US soil”! I can’t help but think how traumatic that must have been for his mother.

From what I’ve heard, the last time this came before SCOTUS, their reasoning was that they didn’t want the kids that male soldiers had overseas with women from populations we were warring on to have citizenship. You’re right, of course, that it’s totally absurd and discriminatory no matter what the reason. I think that it makes sense to require a paternity test but the residence requirement should be the same as it is for women (current in order for a non-resident female citizen’s child to claim citizenship, the woman must have lived in the US for at least one solid year).

From what I’ve heard, the last time this came before SCOTUS, their reasoning was that they didn’t want the kids that male soldiers had overseas with women from populations we were warring on to have citizenship.

Yep, that’s about the size of it. Matrilineal descent historically was used to prevent the obvious consequences of male privilege—i.e. you can fuck whichever women you want but only the children by “right” kind of women (the ones from your own ethnic group, usually) can be treated as legitimate.

Thanks for highlighting this; it would be amazing if we could open up citizenship law a little bit (especially at a time when some Americans are clamoring to get rid of birthright citizenship!!!)in this way. I agree that the way this law is written is sexist and doesn’t empower women in any way shape or form. As a lawyer who has done a bunch of immigration stuff I can’t help but think about all the possible ramifications — kids of soldiers, kids of rape by Americans? kids of one night stands. I hope the good guys win on this one and we get to see all the interesting ways it plays out.

clairedammit, if you have UK citizenship, why wouldn’t your children have it too? Am I missing something? I am married to a British man and live in the UK and thought that any potential future children we had could be dual citizens regardless of where they are born…

@JD: any law that punishes adults for sexual “misconduct” ends up punishing innocent kids more. No matter how those kids ended up being born, if one parent is American, the kid should have US citizenship too.

Wait, what?
My Dad’s a US citizen, who was born and raised in France. I have US citizenship through him – although I’ve set foot in the US exactly once in my life – and I’m UK born, and also have UK citizenship.
And my parents weren’t married when I was born – I might be off-base, but this seems racist to me.
Is this a new law?I really don’t understand.

For people born before 1986, their American fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14, in order for their citizenship to be passed on. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born.

It’s an old law and it’s been changed—which is why it only applied to people born prior to 1986—but the real problem here is that Flores-Villar’s father’s age when he was born. He couldn’t meet the requirement, but that same requirement would not have applied to Flores-Villar’s mother had she been American and the same age when he was born.

I definitely think there’s an inherently racist—or at least, jingoistic—intent there, but that’s not surprising, as matrilineal descent has almost always been about maintaining some kind of ethnic purity.